Divorce has the effect of putting an end to the marriage. It leaves the parties free to contract a fresh marriage with any eligible party. Judicial separation keeps the marriage alive. It legalises the living of the wife and the husband separate from each other.
It is intended to see whether the parties cannot get reconciled to each other and once again resume cohabitation. The decree is no real obstacle to cohabitation. It only renders cohabitation no longer obligatory. It is obvious that judicial separation is a less drastic remedy than divorce.
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ADVERTISEMENTS:
When a decree for judicial separation has been granted and there is no resumption of cohabitation for one year from the date of original decree, a petition for divorce can be filed. The decree may have been appealed against but it is not termination of the proceedings finally of that matter. The one year is to be reckoned only from the date of the original order of the trial court. Gomathi v. Kumaraguruppan, AIR 1987 Mad. 259.
Before the Amendment of 1976 the grounds for divorce were more serious than those for judicial separation. This would be clear from the following table:
Grounds of Judicial Separation
1. Desertion by the respondent for two years immediately preceeding the presentation of the petition.
2. Legal cruelty of respondent.
ADVERTISEMENTS:
3. Respondent suffering from leprosy for not less than one year.
4. Respondent suffering from veneral diseases for not less than three years, (the disease not having been contracted from the petitioner).
5. Respondent suffering from unsoundness of mind for not less than two years.
If the husband contracted V.D. from the wife, the wife as Petitioner can only ask for Divorce and not judicial separation. But the husband as petitioner can claim divorce or judicial separation. Conversely, if the husband communicated V.D. to his wife, he can only ask for divorce.
ADVERTISEMENTS:
6. Respondent having sexual intercourse outside wedlock. Even a single isolated act of martial faithlessness is sufficient for judicial separation, but living in adultery should be proved before the aggrieved party can claim divorce.
Grounds of Divorce:
1. Respondent not heard of for seven years.
2. Respondent suffering from leprosy for not less than three years.
3. Respondent suffering from venereal diseases for not less than three years.
4. Unsoundness of mind for not less than three years.
5. Respondent living in adultery.
6. Grounds for divorce only
- Apostacy (change of religion of the other party),
- Other party renouncing world by entering religious order.
- Failure to comply with decree for restoration of conjugal rights for one year.
- Failure for one year to resume cohabitation after the passing of a decree for judicial separation.
Effect of Amendment:
After the Amendment of 1976, s. 10 has been completely recast. The various grounds for judicial separation mentioned in the old Section have been omitted. It is provided that the petitioner may apply for judicial separation on precisely the same grounds that can support a petition for divorce. Under s. 14 no petition for divorce can be presented within one year of marriage. For the lesser remedy of judicial separation, however, there is no such restriction.